TeeJaw Blog

Woman Who Blew a .232 in Aspen Won’t Face DUI Charge

Posted in crime, Culture, Government and Politics by TeeJaw on Thursday, March 10, 2011, 8: 59 AM

The judge threw out the evidence after reviewing the patrol car dash cam video. The judge said the video didn’t support the officer’s stated reasons for making the traffic stop. Police must have a reasonable suspicion that the driver has violated some law before stopping the vehicle. Evidence gathered after the stop cannot be used to establish reasonable suspicion to make the stop in the first place.

See the very well-written story is at The Aspen Times.

In contesting the motion to suppress the officer’s main point was that the woman blew a .232 on the breathalyzer, but that just enabled her lawyer to argue that the facts supporting reasonable suspicion to make the stop were made up after, not before, stopping the vehicle. Lesson to be learned: know which evidence is relevant to the issue being contested, and don’t argue anything that is not relevant to that issue.

The same officer had an earlier case thrown out for forcing a motorist to perform roadside sobriety tests, which are voluntary. To my knowledge, most DUI defense lawyers advise against voluntarily trying to perform roadside sobriety tests. Seems like good advice to me because I think most people will flunk those tests even if they don’t have a bit of alcohol in their system. The tests are, in my humble opinion, a complete fraud designed to give an officer probable cause to make an arrest nearly every time.

There are three main tests used by most police. In the horizontal gaze nystagmus test the officer holds his pen in front of your face and he asks you to follow it with your eyes while he moves it left to right. If your eyes start to jerk it’s supposed to indicate that you’re drunk. It’s nonsense. It could indicate any of about 25 other things or nothing at all.

Then there’s the one-leg stand while silently counting out what you believe to be 30 seconds. Few of us over the age of 16 can do it stone sober without having to touch our foot down before 30 seconds. But if that happens, voila, probable cause to arrest you for drunk driving.

Finally, the heal to toe walk and turn test. This one is almost guaranteed to make you fall flat on your face even if you are a mormon who doesn’t drink coffee much less any booze.

The only legitimate universal agility test for drunkenness would be something that a sober person could easily do but that a person too drunk to drive could not do. Because we are all so different in our physical agility and tolerance for alcohol, there is probably no such thing. However, we all know when we are dealing with someone who is drunk. In most cases we can articulate just what it is that allows us to conclude that the person standing before us is drunk. There is simply no magic roadside test that will work the same way for all people. Each case will be unique, and each case should be decided and stand on its own.

By the way, I’m not concerned that the woman in this story blew a .232 because it may not mean anything. In fact, I don’t believe that she really was at a BAC of .232. If she had been she would not have been driving as well as the cop’s dash cam video showed. Most don’t know this, or don’t believe it, but breathalyzers don’t work.

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